landmark judgment of delhi high court on submitting assets details in divorce proceeding

8/9/2019 Landmark Judgment of Delhi high court on submitting assets details in Divorce proceeding

1/42

lawweb.in http://www.lawweb.in/2015/01/landmark-judgment-of-delhi-high-court_25.html

Landmark Judgment of Delhi high court on submitting assetsdetails in Divorce proceeding

The Delhi High Court have issued direction that both the husband and the wife need to file detailed affidavits of

income, assets and expenditure at the time of filing for divorce or maintenance petitions. Now hiding of assets andincome at the time of divorce or maintenance proceedings will put in difficulty with the Delhi High Court.Justice J R Midha directed that, the detailed affidavit, along with copies of relevant documents, have to besubmitted by both parties at the time of divorce proceedings so that maintenance orders can be passed by courtswithin 60 days of the divorce being initiated on the basis of true income.

As per courts orders Additional Solicitor General Sanjay Jain will be taking up this issue with the Law Ministry sothat relevant legal provisions gets amended which would include the mandatory affidavits.The court held that, Maintenance is not merely a legal right, it is part and parcel of basic human rights. For weaker sections, it is a problem in the sense that their very survival rests on the maintenance, observed thecourt, adding that lengthy trial in matrimonial proceedings is uncalled for and contrary to the spirit of the Hindu

Marriage Act.Directing all family courts to ensure that the affidavits are filed, Justice Midha said the directions werenecessitated because the parties in the matrimonial litigation do not disclose their true income and the claims of maintenance are dragged up to two years and the court, finding it difficult to determine the true income, tends tofix maintenance by drawing presumptions.The documents which are mandatory to submit includes copies of bank account statements of all accounts for thepast three years, income tax returns along with statement of income for three years, wealth tax returns, cost tocompany certificate, CIBIL certificate, balance sheets and profit and loss accounts of companies, lease deeds anddividend certificates. Details of lifestyle like number of domestic helps, mode of travel and category of hotelsused for stay also have to be submitted with the affidavit. The complete format will soon be uploaded on the

website of the district courts.The court even directed that, the aforesaid procedure be followed in all cases relating to maintenance, includingcases under the Hindu Marriage Act, 1955, Protection of Women from Domestic Violence Act, 2005, Hindu

Adoption and Maintenance Act, 1956, Special Marriage Act, 1954, The Indian Divorce Act, 1869 as well asSection 125 CrPC.It directed family courts to remain vigilant to ensure that the affidavit is not reduced to mere ritual and toscrutinise the affidavit threadbare.Justice Midha gave these directions after taking up bunch of petitions filed by women to get maintenance duringdivorce proceedings as well as permanent alimony fixed once divorce is granted. The bench gave even asked thelower courts to send their reports on the working of these guidelines by July for further consideration.

IN THE HIGH COURT OF DELHI AT NEW DELHIDate of decision: 14th January, 2015

KUSU M SHA RMA

versusMAHINDER KUMAR SHARMA

CORAM :-HON'BLE MR. JUSTICE J.R. MIDHA

The requirements of justice give an occasion for thedevelopment of new dimension of justice by evolving juristic
http://www.lawweb.in/http://www.lawweb.in/2015/01/landmark-judgment-of-delhi-high-court_25.htmlhttp://www.lawweb.in/


2/42

principles for doing complete justice according to the current needsof the Society. The quest for justice in the process of administrationof justice occasions the evolution of new dimensions of the justice.J.S. Verma, J., in his Article New Dimensions of Justice, (1997)3 SCC J-3 observed that:-...Justice is the ideal to be achieved by Law. Justiceis the goal of law. Law is a set of general rulesapplied in the administration of justice. Justice is in a

cause on application of law to a particular case.Jurisprudence is the philosophy of law.Jurisprudence and Law have ultimately to be testedFAO 369/1996 & other connected mattersPage 2 of 46on the anvil of administration of justice. Law as itis, may fall short of 'Law as it ought to be' for doingcomplete justice in a cause. The gap between the twomay be described as the field covered by Morality.There is no doubt that the development of the law is

influenced by morals. The infusion of morality for reshaping the law is influenced by the principles of Equity and Natural Justice, as effective agencies of growth. The ideal State is when the rules of lawsatisfy the requirements of justice and the gapbetween the two is bridged. It is this attempt tobridge the gap which occasions the development of New Jurisprudence.The existence of some gap between law and justice isrecognized by the existing law itself. This is the

reason for the recognition of inherent powers of thecourt by express provision made in the Code of CivilProcedure and the Code of Criminal Procedure. TheConstitution of India by Article 142 expressly conferson the Supreme Court plenary powers for doingcomplete justice in any cause or matter before it.Such power in the court of last resort is recognitionof the principle that in the justice delivery system, atthe end point attempt must be made to do completeustice in every cause, if that result cannot beachieved by provisions of the enacted law. Thesepowers are in addition to the discretionary powers of courts in certain areas where rigidity is consideredinappropriate, e.g., equitable reliefs and Article 226of the Constitution. ...Section 24 of Hindu Marriage Act, 19552.Section 24 of the Hindu Marriage Act empowers the Courtto award maintenance pendente lite and litigation expenses to a

party who has no independent income sufficient for his/her support

in proceedings pending under the Hindu Marriage Act, 1955,having regard to the income of the parties. The Proviso to Section24 provides that application under Section 24 shall be disposed of within 60 days of the date of service of notice on the oppositeparty.


3/42


4/42

hope of wife and children who are deprived of adequate livelihood and whose aspirations perishlike mushroom and possibly the brief candle of sustenance joins the marathon race of extinction.This delay in adjudication by the Family Court is

not only against human rights but also against thebasic embodiment of dignity of an individual.

3. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short the Code) wasconceived to ameliorate the agony, anguish, financialsuffering of a woman who left her matrimonial homefor the reasons provided in the provision so thatsome suitable arrangements can be made by theCourt and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead thelife of an animal, feel like an unperson to be thrown

away from grace and roam for her basicmaintenance somewhere else. She is entitled in lawto lead a life in the similar manner as she wouldhave lived in the house of her husband. That iswhere the status and strata come into play, and thatis where the obligations of the husband, in case of awife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges todeprive her of the benefit of living with dignity.Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutorylaw that governs the field, it is the obligation of thehusband to see that the wife does not become adestitute, a beggar. A situation is not to bemaladroitly created whereunder she is compelled toresign to her fate and think of life dust unto dust. Itis totally impermissible. In fact, it is the sacrosanctduty to render the financial support even if thehusband is required to earn money with physicallabour, if he is able bodied. There is no escape routeunless there is an order from the Court that the wife

is not entitled to get maintenance from the husbandon any legally permissible grounds.

9. A three-Judge Bench in Vimla (K.) v. Veeraswamy(K.)[2], while discussing about the basic purposeunder Section 125 of the Code, opined that Section125 of the Code is meant to achieve a socialpurpose. The object is to prevent vagrancy anddestitution. It provides a speedy remedy for thesupply of food, clothing and shelter to the desertedwife.

...It has come to the notice of the Court that oncertain occasions the Family Courts have beengranting adjournments in a routine manner as a


5/42

consequence of which both the parties suffer or, oncertain occasions, the wife becomes the worst victim.When such a situation occurs, the purpose of the lawgets totally atrophied. The Family Judge is expectedto be sensitive to the issues, for he is dealing withextremely delicate and sensitive issues pertaining tothe marriage and issues ancillary thereto. When wesay this, we do not mean that the Family Courts

should show undue haste or impatience, but there isa distinction between impatience and to be wiselyanxious and conscious about dealing with asituation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more familyproblems but also gradually builds unthinkable andEverestine bitterness. It leads to the coldrefrigeration of the hidden feelings, if still left. Thedelineation of the lis by the Family Judge must

reveal the awareness and balance. Dilatory tacticsby any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the factthat the lis before him pertains to emotionalfragmentation and delay can feed it to grow. Wehope and trust that the Family Court Judges shallremain alert to this and decide the matters asexpeditiously as possible keeping in view the objectsand reasons of the Act and the scheme of variousprovisions pertaining to grant of maintenance,divorce, custody of child, property disputes, etc.(Emphasis supplied)Basis for the claim of maintenance5.The basis of the claim for maintenance is that the claimanthas no independent income to support herself and the Court has totake into consideration the income of both the parties.It iscommon knowledge that in maintenance cases parties rarelydisclose their true income. The applicant is not generally aware of or is not in possession of documents from which the income of respondent can be ascertained. Such documents are accessible tothe respondent only.6.In Radhika v. Vineet Rungta, 110 (2004) DLT 111, thisCourt observed that parties rarely disclose their true income andtherefore, the Court have to resort to the status and life style of theparties for fixing the maintenance. This Court held as under:3. Cases where the parties disclose their actualincome are extremely rare. Experience, therefore,

dictates that where a decision has to be takenpertaining to the claim for maintenance, and the

7. quantum to be granted, the safer and surer method to be employed for coming to a realistic conclusion


6/42

is to look at the status of the parties, since whilstincomes can be concealed, the status is palpablyevident to all concerned. If any opulent lifestyle isenjoyed by warring spouses he should not be heardto complaint or plead that he has only a meagreincome. If this approach had been followed, it wouldhave been evident that the warring spouses enjoy aaffluent lifestyle. It has already been noted that the

learned Trial Court has not discussed the Husband'sincome. While granting maintenance it is incumbenton the Court to make such monetary arrangements aswould be conducive to the spouses continuing alifestyle to which they were accustomed before thematrimonial discord. (Emphasis supplied)Burden of proving the income7.1 The true income of the parties is within their personalknowledge and therefore, the onus to prove their true income is on

them under Section 106 of the Indian Evidence Act.7.2Section 106 of the Indian Evidence Act reads as under:Section 106- Burden of proving fact especially withinknowledge When any fact is especially within the knowledge of anyperson, the burden of proving that fact is upon him.7.3The monthly income of the husband may not very often bewithin the knowledge of the wife, particularly in a case where the

relationship is considerably strained and the spouses are livingapart for a considerable period. Section 106 of the Indian Evidence

Act specifically casts the burden of proof of the income on thehusband since the relevant facts relating to his income cannot bewithin the specific knowledge of the wife.7.4It is noticed that upon the failure of the husband to disclosehis true income without good reasons, the Courts normally draw apresumption against him and accept the allegations of the wife asto the income of the husband. However, this Court has somereservation about accepting the preposition that whatever estrangedwife states with or without rational basis should be accepted asgospel truth. One cannot be oblivious to the human feeling of anestranged wife to exaggerate income of her estranged husband toextract as much as possible due to every increasing lack of sense of security. Every Court is supposed to be circumspect to ensure thatunconsciously by any such order the Court is not forcing one or theother party to the extremes. This Court is of the view that theparties should be directed to file a detailed affidavit of their assets,income and expenditure and the supporting documents in order to

determine their true income.7.5This Court is of the view that the assets, liabilities, incomeand expenditure of the parties are necessary to be determined notonly to fix the maintenance under Section 24 but also to determine


7/42

the permanent alimony under Section 25 of the Hindu Marriage Act and right to the joint properties under Section 27 of the HinduMarriage Act. It is therefore necessary to formulate a format of theaffidavit of assets, income and expenditure and also specify thedocuments to be disclosed by them. The format of the affidavit of

assets, income and expenditure would help the Court indetermining the true income, expenditure, assets and liabilities of

the parties.8.8.1Section 10 of Family Courts Act, 1984The Family Courts Act adopts a less formal procedure.

Although Section 10 of the Act makes the procedure laid downunder the Code of Civil Procedure, 1908 applicable to FamilyCourt proceedings, it also lays down that the Family Court is freeto evolve its own rules of procedure.8.2

Section 10(3) of the Family Courts Act specifically uses theword truth and casts a duty on the Family Court to lay downprocedure to determine the truth of the facts alleged by one partyand denied by the other. Section 10 of the Family Courts Act isreproduced hereunder:Section 10 - Procedure generally(1) Subject to the other provisions of this Act and therules, the provisions of the Code of Civil Procedure,1908 (5 of 1908) and of any other law for the time beingin force shall apply to the suits and proceedings other than proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)], before a FamilyCourt and for the purposes of the said provisions of theCode, a Family Court shall be deemed to be a CivilCourt and shall have all the powers of such Court.(2) Subject to the other provisions of this Act and therules, the provisions of the Code of Criminal Procedure,1973, (2 of 1974), or the rules made thereunder, shallapply to the proceedings under Chapter IX of that Codebefore a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shallprevent a Family Court from laying down its ownprocedure with a view to arrive at a settlement inrespect of the subject-matter of the suit or proceedingsor at the truth of the facts alleged by the one party anddenied by the other.9. Truth should be the Guiding Star in the Entire Judicial Process9.1 It is the duty of the Court to ascertain the true income of theparties and then pass the appropriate order relating to maintenance.

Truth is the foundation of justice. Dispensation of justice, based ontruth, is an essential feature in the justice delivery system. Peoplewould have faith in Courts when truth alone triumphs. The justicebased on truth would establish peace in the society.9.2


8/42

Krishna Iyer J. in Jasraj Inder Singh v. HemrajMultanchand, (1977) 2 SCC 155 described truth and justice asunder:8. ...Truth, like song, is whole, and half-truth can benoise! Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth andharmonising human relations. Law's finest hour is notin meditating on abstractions but in being the delivery

agent of full fairness. This divagation is justified by theneed to remind ourselves that the grammar of justiceaccording to law is not little litigative solution of isolatedproblems but resolving the conflict in its wider bearings.(Emphasis supplied)9.3In Union Carbide Corporation v. Union of India, (1989) 3SCC 38, the Supreme Court described justice and truth to mean thesame. The observations of the Supreme Court are as under:

30. ...when one speaks of justice and truth, these wordsmean the same thing to all men whose judgment isuncommitted. Of Truth and Justice, Anatole France said :Truth passes within herself a penetrating forceunknown alike to error and falsehood. I say truthand you must understand my meaning. For thebeautiful words Truth and Justice need not bedefined in order to be understood in their truesense. They bear within them a shining beautyand a heavenly light. I firmly believe in thetriumph of truth and justice. That is what upholdsme in times of trial....(Emphasis supplied)9.4In Mohanlal Shamji Soni v. Union of India, 1991 Supp(1) SCC 271, the Supreme Court observed that the presiding officer of a Court should not simply sit as a mere umpire at a contestbetween two parties and declare at the end of the combat who haswon and who has lost and that there is a legal duty of his own,independent of the parties, to take an active role in the proceedingsin finding the truth and administering justice.9.5In Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC421, the Supreme Court observed that to enable the Courts to wardoff unjustified interference in their working, those who indulge inimmoral acts like perjury, pre-variation and motivated falsehoodshave to be appropriately dealt with, without which it would not bepossible for any Court to administer justice in the true sense and tothe satisfaction of those who approach it in the hope that truthwould ultimately prevail. People would have faith in Courtswhen they would find that truth alone triumphs in Courts.

9.6In Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3SCC 374, the Supreme Court observed that right from the inceptionof the judicial system it has been accepted that discovery,


9/42

vindication and establishment of truth are the main purposesunderlying existence of Courts of justice.9.7In Himanshu Singh Sabharwal v. State of MadhyaPradesh, (2008) 3 SCC 602, the Supreme Court held that the trialshould be a search for the truth and not about over technicalities.The Supreme Courts observation are as under:5. ... 31. In 1846, in a judgment which Lord Chancellor

Selborne would later describe as one of the ablestudgments of one of the ablest judges who ever sat in thisCourt,Vice-Chancellor KnightBrucesaid[Pearse v. Pearse, (1846) 1 De G&Sm. 12 : 16 LJ Ch 153: 63 ER 950 : 18 Digest (Repl.) 91, 748] : (De G&Sm. pp.28-29):

31. The discovery and vindication and establishmentof truth are main purposes certainly of the existence of courts of justice; still, for the obtaining of theseobjects, which, however valuable and important,cannot be usefully pursued without moderation, cannotbe either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or oughtto be open to them. The practical inefficacy of tortureis not, I suppose, the most weighty objection to thatmode of examination,... Truth, like all other good

things, may be loved unwiselymay be pursued tookeenlymay cost too much.

35. Courts have always been considered to have anoverriding duty to maintain public confidence in theadministration of justiceoften referred to as the dutyto vindicate and uphold the majesty of the law.(Emphasis Supplied)

9.8In Maria Margarida Sequeria Fernandes v. Erasmo Jack

de Sequeria, (2012) 5 SCC 370, the Supreme Court againhighlighted the significance of truth and observed that the truthshould be the guiding star in the entire legal process and it isthe duty of the Judge to discover truth to do complete justice.The Supreme Court stressed that Judge has to play an active roleto discover the truth and he should explore all avenues open tohim in order to discover the truth. The Supreme Court observedas under:32. In this unfortunate litigation, the Court's seriousendeavour has to be to find out where in fact the truth

lies.33. The truth should be the guiding star in the entireudicial process.Truth alone has to be the foundation of ustice. The entire judicial system has been created onlyto discern and find out the real truth. Judges at all levels


10/42

have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligationand bounden duty. Justice system will acquire credibilityonly when people will be convinced that justice is basedon the foundation of the truth.

35. What people expect is that the Court should dischargeits obligation to find out where in fact the truth lies. Right

from inception of the judicial system it has been acceptedthat discovery, vindication and establishment of truth arethe main purposes underlying the existence of the courtsof justice.

52. Truth is the foundation of justice. It must be theendeavour of all the judicial officers and judges toascertain truth in every matter and no stone should be

left unturned in achieving this object. Courts must givegreater emphasis on the veracity of pleadings and

documents in order to ascertain the truth.(Emphasis supplied)10. False claims and defences10.1 In Dalip Singh v. State of U.P., (2010) 2 SCC 114, theSupreme Court observed that a new creed of litigants have croppedup in the last 40 years who do not have any respect for truth andshamelessly resort to falsehood and unethical means for achievingtheir goals. The observations of the Supreme Court are as under:-1. For many centuries, Indian society cherished twobasic values of life i.e., 'Satya' (truth) and 'Ahimsa' (non-

violence). Mahavir, Gautam Buddha and MahatmaGandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to telltruth in the courts irrespective of the consequences.However, post-Independence period has seen drasticchanges in our value system. The materialism has over shadowed the old ethos and the quest for personal gainhas become so intense that those involved in litigation do

not hesitate to take shelter of falsehood,misrepresentation and suppression of facts in the courtproceedings.2. In last 40 years, a new creed of litigants hascropped up. Those who belong to this creed do not haveany respect for truth. They shamelessly resort tofalsehood and unethical means for achieving their goals. In order to meet the challenge posed by this newcreed of litigants, the courts have, from time to time,evolved new rules and it is now well established that alitigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with taintedhands, is not entitled to any relief, interim or final.

(Emphasis supplied)10.2


11/42

In Satyender Singh v. Gulab Singh, 2012 (129) DRJ 128,the Division Bench of this Court following Dalip Singh v. State of U.P. (supra) observed that the Courts are flooded with litigationwith false and incoherent pleas and tainted evidence led by theparties due to which the judicial system in the country is chokedand such litigants are consuming Courts time for a wrong cause.The observations of this Court are as under:-2. As rightly observed by the Supreme Court, Satya is a

basic value of life which was required to be followed byeverybody and is recognized since many centuries. Inspite of caution, courts are continued to be flooded withlitigation with false and incoherent pleas and taintedevidence led by the parties. The judicial system in thecountry is choked and such litigants are consumingcourts time for a wrong cause. Efforts are made by theparties to steal a march over their rivals by resorting tofalse and incoherent statements made before the Court.Indeed, it is a nightmare faced by a Trier of Facts;

required to stitch a garment, when confronted with afabric where the weft, shuttling back and forth across thewarp in weaving, is nothing but lies. As the threads of the weft fall, the yarn of the warp also collapses; andthere is no fabric left.(Emphasis supplied)11.Imposition of costs11.1 In Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC249, the Supreme Court has held that the Courts have to take into

consideration pragmatic realities and have to be realistic inimposing the costs. The relevant paragraphs of the said judgmentare reproduced hereunder:-FAO 369/1996 & other connected mattersPage 17 of 4643. ...We are clearly of the view that unless we ensurethat wrongdoers are denied profit or undue benefit fromthe frivolous litigation, it would be difficult to controlfrivolous and uncalled for litigations. In order to curbuncalled for and frivolous litigation, the courts have toensure that there is no incentive or motive for uncalledfor litigation. It is a matter of common experience thatcourt's otherwise scarce and valuable time is consumedor more appropriately wasted in a large number of uncalled for cases.

52. The main question which arises for our considerationis whether the prevailing delay in civil litigation can becurbed? In our considered opinion the existing systemcan be drastically changed or improved if the followingsteps are taken by the trial courts while dealing with the

civil trials.

C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controllingthe tendency of introducing false pleadings and forged


12/42

and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessaryadjournments by the parties. In appropriate cases thecourts may consider ordering prosecution otherwise itmay not be possible to maintain purity and sanctity of udicial proceedings...

54. While imposing costs we have to take into

consideration pragmatic realities and be realistic whatthe Defendants or the Respondents had to actually incur in contesting the litigation before different courts. Wehave to also broadly take into consideration theprevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurredtowards drafting and filing of the counter affidavit,miscellaneous charges towards typing, photocopying,court fee etc.

55. The other factor which should not be forgotten whileimposing costs is for how long the Defendants or Respondents were compelled to contest and defend thelitigation in various courts. The Appellants in the instantcase have harassed the Respondents to the hilt for four decades in a totally frivolous and dishonest litigation invarious courts. The Appellants have also wasted judicialtime of the various courts for the last 40 years.56. On consideration of totality of the facts andcircumstances of this case, we do not find any infirmity inthe well reasoned impugned order/judgment. Theseappeals are consequently dismissed with costs, which wequantify as Rs. 2,00,000/- (Rupees Two Lakhs only). Weare imposing the costs not out of anguish but by followingthe fundamental principle that wrongdoers should not getbenefit out of frivolous litigation....(Emphasis supplied)11.2 In Maria Margarida Sequeria Fernandes v. Erasmo Jackde Sequeria (supra) the Supreme Court held that heavy costs andprosecution should be ordered in cases of false claims anddefences. The Supreme Court held as under:-

82. This Court in a recent judgment in RamrameshwariDevi and Ors. (supra) aptly observed at page 266, para43 that unless wrongdoers are denied profit fromfrivolous litigation, it would be difficult to prevent it. Inorder to curb uncalled for and frivolous litigation, theCourts have to ensure that there is no incentive or motivefor uncalled for litigation. It is a matter of commonexperience that Court's otherwise scarce time isconsumed or more appropriately, wasted in a largenumber of uncalled for cases. In this very judgment, the

Court provided that this problem can be solved or at leastbe minimized if exemplary cost is imposed for institutingfrivolous litigation. The Court observed at pages 267-268that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a


13/42

long way in controlling the tendency of introducing falsepleadings and forged and fabricated documents by thelitigants. Imposition of heavy costs would also controlunnecessary adjournments by the parties. In appropriatecases, the Courts may consider ordering prosecutionotherwise it may not be possible to maintain purity andsanctity of judicial proceedings.12. Judges Power to put questions or order production12.1 Section 165 of the Indian Evidence Act, 1872 invests theJudge with plenary powers to put any question to any witness or party; in any form, at any time, about any fact relevant or irrelevant. Section 165 is intended to arm the Judge with the mostextensive power possible for the purpose of getting at the truth.The effect of this section is that in order to get to the bottom of thematter before it, the Court will be able to look at and inquire intoevery fact and thus possibly acquire valuable indicative evidencewhich may lead to other evidence strictly relevant and admissible.The Court is not, however, permitted to found its judgment on any

but relevant statements.12.2Section 165 of the Indian Evidence Act, 1872 reads asunder:Section 165. Judges power to put questions or order production.-The Judge may, in order to discover or obtain proper proof of relevant facts, ask any question he pleases, inany form, at any time, of any witness, or of the parties,about any fact relevant or irrelevant; and may order the

production of any document or thing; and neither theparties nor their agents shall be entitled to make anyobjection to any such question or order, nor, without the

leave of the Court, to cross-examine any witness uponany answer given in reply to any such question:Provided that the judgment must be based upon factsdeclared by this Act to be relevant, and duly proved:Provided also that this section shall not authorize anyJudge to compel any witness to answer any question or toproduce any document which such witness would beentitled to refuse to answer or produce under Sections121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would beimproper for any other person to ask under Section 148or 149 ; nor shall he dispense with primary evidence of any document, except in the cases herein beforeexcepted.12.3The object of a trial is, first to ascertain truth by the light of

reason, and then, do justice upon the basis of the truth and theJudge is not only justified but required to elicit a fact, wherever theinterest of truth and justice would suffer, if he did not.12.4The Judge contemplated by Section 165 is not a mere


14/42

umpire at a wit-combat between the lawyers for the parties whoseonly duty is to enforce the rules of the game and declare at the endof the combat who has won and who has lost. He is expected, andindeed it is his duty, to explore all avenues open to him in order todiscover the truth and to that end, question witnesses on pointswhich the lawyers for the parties have either overlooked or leftobscure or willfully avoided. A Judge, who at the trial merely sitsand records evidence without caring so to conduct the examination

of the witnesses that every point is brought out, is not fulfilling hisduty.

12.5The Supreme Court in Ram Chander v. State of Haryana,(1981) 3 SCC 191 observed that under Section 165, the Court hasample power and discretion to control the trial effectively. Whileconducting trial, the Court is not required to sit as a silentspectator or umpire but to take active part within theboundaries of law by putting questions to witnesses in order to

elicit the truth and to protect the weak and the innocent. It is theduty of a Judge to discover the truth and for that purpose he may"ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant".12.6In Ritesh Tewari v. State of Uttar Pradesh, (2010) 10 SCC677, the Supreme Court held that every trial is a voyage of discovery in which truth is the quest. The power under Section165 is to be exercised with the object of subserving the cause of ustice and public interest, and for getting the evidence in aid of aust decision and to uphold the truth.It is an extraordinarypower conferred upon the Court to elicit the truth and to act inthe interest of justice. The purpose being to secure justice by fulldiscovery of truth and an accurate knowledge of facts, the Courtcan put questions to the parties, except those which fall withinexceptions contained in the said provision itself.12.7In State of Rajasthan v. Ani, (1997) 6 SCC162, theSupreme Court held that Section 165 of the Indian Evidence Actconfers vast and unrestricted powers on the Court to elicittruth. Reticence may be good in many circumstances, but a Judgeremaining mute during trial is not an ideal situation. A taciturn

Judge may be the model caricatured in public mind. But there isnothing wrong in his becoming active or dynamic during trial sothat criminal justice being the end could be achieved. A Judge isexpected to actively participate in the trial to elicit necessarymaterials from witnesses in the appropriate context which hefeels necessary for reaching the correct conclusion.Suggestions

13.Vide order dated 18th September, 2014, this Court hadsuggested that all petitions under Sections 9 to 13 of the HinduMarriage Act to be accompanied with an affidavit of assets, incomeand expenditure of the petitioner in terms of Puneet Kaur v.


15/42

Inderjeet Sawhney (supra) and the respondent should file his/her affidavit of assets, income and expenditure within 30 days of theservice of the notice along with the response of the petitionersaffidavit (paras 33.3 and 33.5 of the order dated 18th September,2014).14.Vide order dated 18th September, 2014, this Court further directed the Courts below to give their suggestions with respect to

the working of the guidelines in pursuance to which the FamilyCourts and the Courts dealing with the cases of maintenance under Section 125 Cr.P.C. have sent their response as well as their suggestions. The learned amicus curiae and the other Advocateshave also given their suggestions which are discussed hereunder:14.1Mr. Sunil Mittal, learned amicus curiae made followingsuggestions at the time of hearing:

(i)

The parties should disclose their assets, income andexpenditure at the time of the marriage or one year before the dateof separation whichever is later; secondly at the time of separationand thirdly, at the time of deposing the affidavit.(ii)The parties are well aware of the assets, income andexpenditure of the other spouse and therefore, the parties shouldgive the particulars of the assets, income and expenditure of theother spouse in their affidavit itself.(iii)The list of documents to be filed along with affidavit bespecified to enable the litigants to file the relevant documentsavailable with them.(iv)The appearance of the parties on each and every date of hearing in matrimonial cases be made mandatory.14.2Ms. Anu Narula, learned amicus curiae, submitted that theformat of the affidavit prescribed in Puneet Kaurs case is quitecomprehensive. Ms. Anu Narula however has suggested that theemployees of the MNCs normally have two separate contracts, onepertaining to the salary and the other pertaining to theincentives/commissions, which they do not normally disclose to theCourt. The employee of the Companies should disclose the Cost toCompany Certificate which would give the real income of theperson as it would include the commissions, incentives, heftyannual bonuses. It is further submitted that the report of the CIBILprovides a complete insight into the persons liabilities qua loansand repayments and it gives a clear indication of the financialposition of a person. Ms. Anu Narula suggested the followingdocuments to be filed along with the affidavit :-

(i) Income Tax returns.(ii) Form 16 and Form 12BAFAO 369/1996 & other connected mattersPage 24 of 46(iii) Appointment letter


16/42

(iv) Cost to Company Certificate(v) Report of CIBIL (Credit Information Bureau India Limited).14.3 Ms. Prem Lata Bansal, learned Senior Advocate appointedas amicus curiae vide order dated 23rd December, 2011 has giventhe list of documents to be submitted along with the affidavit of assets and income.14.4

Mr. Hasan Anzar and Ms. Samana Suhail, Advocates, havegiven the following suggestions:(i) The aforesaid procedure should also be followed in cases relating to Special Marriage Act and Indian Divorce Act.(ii) The copies of the affidavits and the pleadings should be exchanged by the counsels by e-mail.(iii) Corpus should be created for the minor children and unmarried daughter.(iv) The maintenance should be enhanced @ 4% to 6% per annum.

(v) The cause list of the Family Court should be put on the website.(vi) The following documents should be filed along with the affidavit:(a) Income Tax Return/Form 16 for the last three years.(b) Salary certificate/Cost to Company Certificate for thelast three years.(c) Bank statement of all the bank accounts for the lastthree years.(d) Credit/Debit card statements.

FAO 369/1996 & other connected mattersPage 25 of 46(e) Income of joint family business should be taken intoconsideration.(f)Documents relating to the investment in real estateproperties including pre-launch and launched projects.(g) Insurance policies/mutual fund and other investmentsin valuable securities.(h) Agricultural income.14.5Dr. L.S. Chaudhary, Advocate made the followingsuggestions:(i) The order dated 18th September 2014 be modified but reviewed after a period of six months.(ii) In cases a petition for divorce by the wife who is claiming maintenance under Section 24 from the husband, the wife should not be required to pay litigation expenses to the respondent.14.6 Mr. Ashwini Sood, Advocate submitted that the disposal of the maintenance application by the Family Courts are delayedbecause of huge pendency of cases. It is further submitted that theparty filing false affidavit of assets, income and expenditure shouldbe immediately prosecuted under Section 340 Cr.P.C.14.7The Family Courts and the Courts dealing with cases under


17/42

Section 125 Cr.P.C. have also sent their suggestions which are asunder:(i) The affidavit should require the party to state whether similar monetary relief has been claimed in any other proceedings and if so, the particulars of the monetary relief awarded be given.(ii) Earning spouse should append income certificate from his employer.

(iii) Direction to filing section not to accept incomplete petitions.(iv) Following additional information be sought in the affidavit of assets, income and expenditure:(a) Admitted amount of maintenance which the spouse is prepared to pay to the other spouse.(b) Name and relationship of the person with whom he/she is residing along with the affidavit of income of such relations.(c) The income tax returns and salary slips for the last

three years, PAN card, passport, aadhar, voter ID card and insurance policy of the vehicle be also called for from the parties.(d) Interim order with respect to payment of school fees of the children should be made on the very first date.(v) All cases between the parties should be taken up by one Court.(vi) Not more than 500-700 cases should be allocated to each Court to enable them to expedite the hearing in terms of Section 4 of the Family Courts Act.(vii) DLSA should assign one legal aid counsel to each FamilyCourt to assist litigants.(viii) Rs.11,000/- should be directed to be paid towards interimlitigation expenses.(ix) The report of the SDM should be sought to verify the financial status of the parties.(x) Establishment of Family Courts Settlement Fund by Govt. of NCT of Delhi to provide immediate interim relief releasing maintenance in deserving cases.(xi) Courts be authorized to appoint an amicus curiae in appropriate cases.(xii) Sensitize lawyers with regard to the directions issued by thisCourt.

(xiii) Connectivity with the server should be provided to theFamily Courts.15. Affidavit of income and assets provided in Form 16A of APPENDIX-E under Order 21 Rule 41(2) of the Code of Civil Procedure15.1 Order 21 Rule 41(3) of the Code of Civil Procedureempowers the Court, in execution of a money decree, to examine

the judgment debtor to ascertain the properties owned by him.Order 21 Rule 41(2) further empowers the Court to direct theudgment debtor to file an affidavit stating the particulars of theassets of the judgment debtor.Upon disobedience of such an


18/42

order, Order 21 Rule 41(3) of the Code of Civil Procedureempowers the Court to send the judgment debtor to civil prison for a term not exceeding three months.15.2The form of the affidavit required to be filed by theudgment debtor under Order 21 Rule 41(2) of the Code of CivilProcedure is provided in Form 16-A in Appendix E.15.3

Initially the Matrimonial Courts were directing the partiesto file the affidavit in the format given in Form 16-A of AppendixE under Order 21 Rule 41 of the Code of Civil Procedure but thelitigants were not truly disclosing their income in the said affidavit.15.4This Court is of the view that the format of affidavit of assets, income and expenditure provided in Form 16-A of

Appendix E of the Code of Civil Procedure is not comprehensiveto discover the complete income, assets and expenditure of theparties in matrimonial litigation and therefore, there is a need to

formulate a comprehensive affidavit of assets, income and

expenditure.Puneet Kaur v. Inderjit Singh Sawhney, 2011 (183) DLT 40316.In Puneet Kaur v. Inderjit Singh Sawhney (supra), thisCourt, while dealing with Section 24 of the Hindu Marriage Act,directed both the parties to file detailed affidavits of their assets,income and expenditure. The relevant portion of the said judgmentis held as under:7. ...both the parties are directed to file their respectiveaffidavits of assets, income and expenditure from thedate of the marriage up to this date containing thefollowing particulars:7.1 Personal Information(i) Educational qualifications.(ii) Professional qualifications.(iii) Present occupation.(iv) Particulars of past occupation,(v) Members of the family.(a) Dependent.(b) Independent.7.2 Income(i) Salary, if in service.(ii) Income from business/profession, if self employed.(iii) Particulars of all earnings since marriage.(iv) Income from other sources:(a) Rent.(b) Interest on bank deposits and FDRs.(c) Other interest i.e. on loan, deposits, NSC, IVP, KVP,Post Office schemes, PPF etc.

(d) Dividends.(e) Income from machinery, plant or furniture let onhire.(f) Gifts and Donations.(g) Profit on sale of movable/immovable assets.


19/42

(h) Any other income not covered above.7.3 Assets

(i) Immovable properties:(a) Building in the name of self and its Fair MarketValue (FMV):- Residential.- Commercial.

- Mortgage.- Given on rent.- Others.(b) Plot/land.(c) Leasehold property.(d) Intangible property e.g. patents, trademark, design,goodwill.(e) Properties in the name of family members/HUF andtheir FMV.(ii) Movable properties:

(a) Furniture and fixtures.(b) Plant and Machinery.(c) Livestock.(d) Vehicles i.e. car, scooter along with their brand andregistration number.(iii) Investments:(a) Bank Accounts - Current or Savings.(b) Demat Accounts.(c) Cash.(d) FDRs, NSC, IVP, KVP, Post Office schemes, PPFetc.(e) Stocks, shares, debentures, bonds, units and mutualfunds.(f) LIC policy.(g) Deposits with Government and Non-Governmententities.(h) Loan given to friends, relatives and others.(i) Telephone, mobile phone and their numbers.(j) TV, Fridge, Air Conditioner, etc.(k) Other household appliances.(l) Computer, Laptop.(m) Other electronic gadgets including I-pad etc.(n) Gold, silver and diamond Jewellery.(o) Silver Utensils.(p) Capital in partnership firm, sole proprietorship firm.FAO 369/1996 & other connected mattersPage 30 of 46(q) Shares in the Company in which Director.(r) Undivided share in HUF property.(s) Booking of any plot, flat, membership in Co-op.Group Housing Society.

(t) Other investments not covered by above items.(iv) Any other assets not covered above.7.4 Liabilities(i) OD, CC, Term Loan from bank and other institutions.(ii) Personal/business loan


20/42

(a) Secured.(b) Unsecured.(iii) Home loan.(iv) Income Tax, Wealth Tax and Property Tax.7.5 Expenditure(i) Rent and maintenance including electricity, water and gas.(ii) Lease rental, if any asset taken on hire.

(iii) Installment of any house loan, car loan, personalloan, business loan, etc.(iv) Interest to bank or others.(v) Education of children including tuition fee.(vi) Conveyance including fuel, repair and maintenanceof vehicle. Also give the average distance travelled everyday.(vii) Premium of LIC, Medi-claim, house and vehiclepolicy.(viii) Premium of ULIP, Mutual Fund.

(ix)ContributiontoPPF,EPF,approvedsuperannuation fund.(x) Mobile/landline phone bills.(xi) Club subscription and usage, subscription to newspapers, periodicals, magazines, etc.

(xii) Internet charges/cable charges.(xiii) Household expenses including kitchen, clothing,etc.(xiv) Salary of servants, gardener, watchmen, etc.(xv) Medical/hospitalization expenses.(xvi) Legal/litigation expenses.(xvii) Expenditure on dependent family members.(xviii) Expenditure on entertainment.

(xix) Expenditure on travel including outstation/foreigntravel, business as well as personal.(xx) Expenditure on construction/renovation andfurnishing of residence/office.(xxi) Any other expenditure not covered above.7.6 General Information regarding Standard of Livingand Lifestyle(i) Status of family members.(ii) Credit/debit cards.(iii) Expenditure on marriage including marriage of family members.(iv) Expenditure on family functions including birthday

of the children.(v) Expenditure on festivals.(vi) Expenditure on extra-curricular activities.(vii) Destination of honeymoon.(viii) Frequency of travel including outstation/foreign


21/42

travel, business as well as personal.(ix) Mode of travel in city/outside city.(x) Mode of outstation/foreign travel including type of class.(xi) Category of hotels used for stay, official as well aspersonal, including type of rooms.(xii) Category of hospitals opted for medical treatmentincluding type of rooms.

(xiii) Name of school(s) where the child or children arestudying.(xiv) Brand of vehicle, mobile and wrist watch.(xv) Value of jewellery worn.(xvi) Details of residential accommodation.(xvii) Value of gifts received.(xviii) Value of gifts given at family functions.(xix) Value of donations given.(xx) Particulars of credit card/debit card, its limit andusage.

(xxi) Average monthly withdrawal from bank.(xxii) Type of restaurant visited for dining out.(xxiii) Membership of clubs, societies and other associations.(xxiv) Brand of alcohol, if consumed.FAO 369/1996 & other connected mattersPage 32 of 46(xxv) Particulars of all pending as well as decided casesincluding civil, criminal, labour, income tax, excise,property tax, MACT, etc. with parties name.

8. Both the parties are also directed to file, along withaffidavit, copies of the documents relating to their assets, income and expenditure from the date of themarriage up to this date and more particularly thefollowing:(i) Relevant documents with respect to income includingSalary certificate, Form 16A, Income Tax Returns,certificate from the employer regarding cost to thecompany, balance sheet, etc.(ii) Audited accounts, if deponent is running businessand otherwise, non-audited accounts i.e. balance sheets,profit and loss account and capital account.(iii) Statement of all bank accounts.(iv) Statement of Demat accounts.(v) Passport.(vi) Credit cards.(vii) Club membership cards.(viii) Frequent Flyer cards.(ix) PAN card.(x) Applications seeking job, in case of unemployedperson.9. The affidavit and documents be filed within a periodof four weeks with an advance copy to opposite partieswho shall file their response within two weeksthereafter.11. Both the parties are directed to remain present in


22/42

Court on the next date of hearing along with all originaldocuments relating to their assets, income andexpenditure.17. Format of the affidavit of assets, income and expenditure.17.1 This Court is of the view that a comprehensive affidavit of assets, income and expenditure should be filed by the both theparties at the very threshold in all matrimonial cases to enable theCourts to determine the maintenance on the basis of true income of

FAO 369/1996 & other connected mattersPage 33 of 46the parties.17.2The affidavit of assets, income and expenditure by theparties at the very threshold of matrimonial litigation has followingadvantages:-(i)The parties will have to disclose their true income, assets andexpenditure.

(ii)The maintenance order can be passed expeditiously withoutany delay on the basis of the affidavit.(iii) Substantial judicial time would be saved.(iv) The maintenance would be fixed by the Court on the basis of true income of the parties.17.3The learned amici curiae agree to the formulating of theformat of the affidavit of income, assets and expenditure to be filedby the parties.

17.4This Court has formulated the draft of the assets, incomeand expenditure to be filed by the parties at the very threshold in allmatrimonial cases which is attached hereto as Annexure A.18. International Best Practices18.1 This Court has examined the matrimonial law in variouscountries namely U.S.A, United Kingdom, Canada, Australia andSouth Africa where it is mandatory for both parties in thematrimonial litigation to file the affidavit of their assets, income,expenditure and liabilities at the very threshold of matrimoniallitigation and the format of the affidavit is duly prescribed in theRules. The Rules and mandatory formats of affidavit of assets,income and expenditure down loaded and examined by this Courtare as under:

S.NoName of Name of the Court Applicable Rules Affidavit for Hyper Linkthe financialCountry disclosure1. U.S.A. Circuit Court of PART 11.00 Financial 2. U.S.A Franklin County Rules of Affidavit of 1.http://19thcircuitcourt.state.il.us/crt_for

Nineteenth Judicial Family Law Affidavit 11.02 Court of Common Domestic Income andms/Documents/family/Affidavit- Circuit Lake County, Pleas Division of Relations Expenses Financial11.02_040306.pdf Illinois Domestic Relations Division 2. http://19thcircuitcourt.state.il.us/resour and Juvenile Branch ces/Pages/rules11.aspx


23/42

1.http://www.fccourts.org/DRJ/PDF/forms/ income_affidavit.pdf 2. http://www.franklincountyohio.gov/clerk /drfaq.cfm3. U.S.A Family Court of the Part 205. Uniform Financial 1. https://www.nycourts.gov/forms/familyc State of New York rules for the Disclosure ourt/pdfs/4-17.pdf County. family court Affidavit 2. http://www.nycourts.gov/rules/trialcourts /205.shtml

4. U.S.A Superior Court of Arizona Rules of Affidavit of 5. U.S.A State of Winsconsin, Basic guide to Financial 6.U.S.A Montgomery County Rules of the Affidavit of 7. U.K. Royal Court of Rules of Form E Financial 8. CanadaQueens Bench and Alberta Rules of 9. Republic Schedule A to 1. https://www.superiorcourt.maricopa.gov/ Arizona in Maricopa Family Law Financial Circuit Court Divorce/ Legal Disclosure Domestic RelationsDomestic Financial Justice Application for Statement the Court of Appeal Court of South Form FL 17 ,sscDocs/pdf/drosc13f.pdf County Procedure Information Seperation Statement Court Relations Disclosure financial remedy AfricaStatement of 2. https://govt.westlaw.com/azrules/Browse Division Affidavit Income , Assets/Home/Arizona/ArizonaCourtRules/Ariz

and Liabilities onaStatutesCourtRules?guid=N258B8E4 Application for 0715611DAA16E8D4AC7636430&origi Maintenance nationContext=documenttoc&transitionT Order. ype=Default&contextData=(sc.Default) 1. http://www.wicourts.gov/forms/fa- 4139.pdf 2. https://www.wicourts.gov/formdisplay/F A4100_instructions.pdf?formNumber=F A4100&formType=Instructions&formatI d=2&language=en

1. http://www.mcohio.org/government/dom estic_relations_court/docs/affidavit_of_fi nancial_disclosure.pdf 2. www.mcohio.org/government/domestic_ relations_court/docs/LOCAL_RULES.p df 1. http://www.jordanpublishing.co.uk/syst em/redactor_assets/documents/709/For m_E.pdf 2. https://www.justice.gov.uk/courts/proc edure-rules/family/parts/part_09 1. http://www.albertacourts.ab.ca/LinkCli ck.aspx?fileticket=nE63Bp0FClQ%3D &tabid=31010. AustraliaMaintenance Act99 of 1998Family Court of

AustraliaFamily Law Rules

Rule 13.05Federal CircuitCourt Rules- Rule24.02FAO 369/1996 & other connected mattersFinancial


24/42

Statement1. http://www.justice.gov.za/forms/maintenance/MNT_Form%20A.pdf 2. www.justice.gov.za/legislation/acts/1998-099.pdf 1. http://www.familylawcourts.gov.au/wps/wcm/resources/file/ebfc574063514ae/FinancialStatement_form_0313V1.pdf

2. http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Forms/Family+Law+Courts+forms/Financial_Statement_form

18.2The relevant Rules of Nineteenth Judicial Circuit Court of Lake County, Illinois, U.S.A. (http://19thcircuitcourt. state.il.us/resources/Pages/rules11.aspx#top) are as under: -11.02 AFFIDAVIT OF PARTIES AND

PRODUCTION OF DOCUMENTS A.Prior to the Initial Case ManagementConference.1. Seven days prior to the initial case managementconference in any proceeding for dissolution of marriage or legal separation, the parties of recordshall exchange with each other completedComprehensive Financial Affidavits of income,expenses, assets and liabilities in the form approvedby the court.2. The Comprehensive Financial Affidavit shall not befiled with the Clerk of the Circuit Court.3. On or before the initial case management conference,each party of record shall file with the Clerk of theCircuit Court a certificate of compliance certifyingthat the Comprehensive Financial Affidavit has beencompleted and setting forth the date the completedComprehensive Financial Affidavit was served uponthe opposing party.(Emphasis Supplied)18.3 The relevant rules of the Domestic Relations Division of Montgomery County Domestic Relations Court, U.S.A(http://www.mcohio.org/government/domestic_relations_court/docs/LOCAL_RULES.pdf ) are as under: -RULE 4.10

AFFIDAVIT OF FINANCIAL DISCLOSURE(A) Required Filing. The courts approved Affidavitof Financial Disclosure[Appendix, Form 2] shall betimely submitted to the court as required by this rule, onthe forms provided by the court or computer generated

duplications. All Affidavits of Financial Disclosure shallFAO 369/1996 & other connected mattersPage 36 of 46be complete and provide detailed disclosure under oath.Incomplete affidavits may not be accepted or considered


25/42

by the court. Every party is under an affirmative duty tosupplement any Affidavit of Financial Disclosureimmediately upon any material change in employment,income, expenses or other information included in theaffidavit.The Supreme Court of Ohio has authorized the use of their Affidavit of Income and Expenses (See AppendixForm 2A). If a party elects to use this form and the party

is requesting a temporary custody or support order, theparty must file a separate motion for the temporaryorder.(B)Distribution of Affidavit.(1) Divorce, Legal Separation, Annulment: Allcomplaints for divorce, legal separation, or annulmentshall be accompanied by an Affidavit of FinancialDisclosure, a copy of which shall be sent by the plaintiff to the defendant. All defendants shall submit to the court

an Affidavit of Financial Disclosure within fourteen (14)days of service of summons or with any Answer or Counterclaim if one has not already been submitted, andshall serve a copy on the plaintiff.(2) Dissolutions of Marriage: In petitions for dissolutions of marriage, an Affidavit of FinancialDisclosure shall be submitted to the court by each partycontemporaneously with the petition.(3) Domestic Violence: In all domestic violence caseswhere support is an issue, the petitioner shall submit to

the court an Affidavit of Financial Disclosure which shallbe sent to the respondent. The respondent shall submit tothe court and shall send to the petitioner an Affidavit of Financial Disclosure prior to the next hearing on thematter.(4) Post Decree Motions: In all post decree motionswhere support is an issue, the moving party shall submitto the court an Affidavit of FinancialDisclosure which shall be sent to the non-moving party.FAO 369/1996 & other connected mattersPage 37 of 46The non-moving party shall submit to the court and sendto the moving party an Affidavit of Financial Disclosure within fourteen (14) days of serviceof summons, or three (3) days prior to the next hearingon the matter, whichever is earlier.(Emphasis supplied)18.4The view taken by this Court in Puneet Kaur v. InderjitSingh Sawhney (supra) with respect to the necessity of affidavit of assets, income and expenditure of the parties to determine the trueincome of the parties and the direction of this Court in the order dated 18th September, 2014 for filing of the affidavit of assets,income and expenditure at the very threshold of matrimoniallitigation in all matrimonial cases to do complete justice is inconformity with the international best practices in the developed


26/42

countries.Conclusion19.On careful consideration of the valuable suggestions givenby the Courts below, learned amici curiae and the counsels for theparties, the order dated 18th September, 2014 is modified and themodified directions are as under: -19.1

Matrimonial jurisdiction is of a special nature and deservesa special attention. Lengthy trial in matrimonial proceedings isuncalled for and contrary to the spirit of Hindu Marriage Act.19.2The affidavit of assets, income and expenditure of both theparties are necessary to determine the rights of the parties under Sections 24 to 27 of the Hindu Marriage Act and, therefore, shouldbe filed by both the parties at the very threshold in order to curb theFAO 369/1996 & other connected mattersPage 38 of 46

delay and expedite the trial in terms of Section 21-B of the HinduMarriage Act.19.3

Applying the aforesaid principles laid down in Section10(3) of the Family Courts Act, 1984 read with Section 165 of theIndian Evidence Act relating to the duty of the Court to ascertainthe truth and the duty of the parties to disclose their income under Section 106 of the Indian Evidence Act, this Court has formulatedthe format of the affidavit of assets, income and expenditureattached to this order as Annexure A which shall form part of this

udgment.The documents required to be filed along with theaffidavit are prescribed in the format of the affidavit.19.4

All pleadings including petitions under Sections 9 to 13 of the Hindu Marriage Act and the written statement shall beaccompanied with an affidavit of assets, income and expenditure inthe format provided in Annexure A and shall be accompanied bythe relevant documents mentioned therein.19.5If the petitioner claims maintenance, application under Section 24 should be filed along with the petition. However, if respondent claims maintenance, the application under Section 24along with the affidavit of assets, income and expenditure in theformat provided in Annexure A along with the response to thepetitioners affidavit should be filed within 30 days of the serviceof the notice.19.6The response to the respondents affidavit of assets, incomeand expenditure be filed by the petitioner within two weeksFAO 369/1996 & other connected mattersPage 39 of 46thereafter and the case be listed for disposal of the applicationunder Section 24 of the Hindu Marriage Act. If the parties areunable to file their response within two weeks, Court may suitablyextend the time period upon sufficient cause being shown.


27/42

19.7The Court may also call upon the parties of to file such anaffidavit in pending cases of maintenance if the parties have notalready disclosed their true income.19.8Paras 33.3 and 33.5 of the order dated 18th September, 2014are modified to the extent that the parties shall file the affidavit of their assets, income and expenditure in format provided in

Annexure A, instead of the affidavit prescribed in Puneet Kaur v.Inderjeet Sawhney (supra).19.9There may be cases where one of the spouse has sufficientmeans of sustenance and therefore, the application under Section24 is not warranted at the initial stage.In such cases, theconcerned spouse need not file the application under Section 24 of the Hindu Marriage Act but shall specifically mention this fact inthe pleadings i.e. petition/written statement, as the case may be. In

such cases, the written statement along with the affidavit in theformat provided in the Annexure A be filed by the respondentwithin 30 days of the service of summons. However, this wouldnot preclude the filing of the application under Section 24 at a later stage, if the circumstances so warrant.19.10 Even in cases where Section 24 is not invoked by either of the parties, the affidavit of assets, income and expenditure in termsFAO 369/1996 & other connected mattersPage 40 of 46of Annexure A shall be filed by both the parties for the purpose of

adjudicating claims under Sections 25 to 27 of the Hindu Marriage Act, which may be raised at a later stage. If the affidavits of theparties are on record, the claim under Sections 25 to 27 would notdelay the proceedings.19.11 If the claim of permanent alimony under Section 25 of theHindu Marriage Act is raised before the appellate Court, as in thepresent appeals, the appellate Court can direct the parties to filetheir affidavits of assets, income and expenditure in terms of

Annexure A. However, if such affidavits of the parties are alreadyon record, the adjudication of claim under Section 25 of the HinduMarriage Act would not delay the proceedings.19.12 The Court shall ensure that the filing of the affidavits by theparties is not reduced to a mere ritual or formality. The Court shallscrutinize the affidavit threadbare and may decline to take the sameon record unless it contains complete particulars mentioned

Annexure A and is accompanied by the documents mentionedtherein.19.13 If the affidavit filed by the parties is not in the prescribedformat or is not accompanied with the relevant documents, thelearned Court shall not return it back to the filing counter as beingdone by same Courts. It would be appropriate for the Court togrant reasonable time to the parties to remove the defects/deficiencies instead of returning back the affidavit to the filingcounter.FAO 369/1996 & other connected mattersPage 41 of 46


28/42

19.14 If a party has made concealment or false statement inhis/her affidavit, the opposite party shall disclose the particulars of the same in his/her response on affidavit along with the material toshow concealment or false statement. The aggrieved party may alsoseek permission of the Court to serve interrogatories and seekproduction of relevant documents from the opposite party under Order XI of the Code of Civil Procedure.19.15 Whenever a party discloses sufficient material to show

concealment or false statement in the affidavit of the oppositeparty, the Court may consider examining the deponent of theaffidavit under Section 165 of the Evidence Act to elicit the truth.In appropriate cases, the Court may direct a party to file anadditional affidavit relating to his assets, income and expenditure atthe time of marriage and/or one year before separation and/or at thetime of separation.19.16 If the statements made in affidavit of assets, income andexpenditure are found to be incorrect, the Court shall consider itseffect while fixing the maintenance.

However, action under Section 340 Cr.P.C. is ordinarily not warranted in matrimoniallitigation till the decision of the main petition.19.17 At the time of issuing notice, the Court shall consider directing the petitioner to deposit such sum, as the Court mayconsider appropriate, on the basis of petitioners affidavit, for payment to the respondent towards interim litigation/part litigationexpenses. However, in cases such as divorce petition by the wifeFAO 369/1996 & other connected mattersPage 42 of 46

who unable to support herself and is claiming maintenance fromthe respondent husband, it would not be appropriate to direct thepetitioner-wife to pay the litigation expenses to the respondent-husband.19.18 If the disposal of maintenance application is taking time,and the delay is causing hardship, ad-interim maintenance shouldbe granted to the claimant spouse on the basis of admitted incomeof the respondent.19.19 The application under Section 24 should be decided asexpeditiously as possible otherwise the very object of the provisoto Section 24 would be defeated.19.20 The aforesaid procedure be followed in all cases relating tomaintenance including cases under Hindu Marriage Act, 1955,Protection of Women from Domestic Violence Act, 2005, Hindu

Adoption and Maintenance Act, 1956, Special Marriage Act, 1954Indian Divorce Act, 1869 as well as Section 125 Cr.P.C.19.21 It is clarified that the directions contained in the order dated18th September, 2014 as well as this judgment are guidelines todetermine the true income of the parties by applying the principleslaid down in Sections 106 and 165 of the Indian Evidence Act readwith Section 10(3) of the Family Courts Act, which cast a duty onthe Court to determine the true income of the parties. Thesedirections are necessitated because the parties in the matrimoniallitigation do not disclose their true income and the claims of maintenance are dragged as long as upto two years and the Courts,FAO 369/1996 & other connected matters


29/42


30/42

the same.26.Copy of the order dated 18th September, 2014 as well asthis judgment along with the Annexure A be also sent to the DelhiJudicial Academy to sensitize the judicial officers about theguidelines laid down by this Court.27.Copy of this judgment along with the Annexure A be given

FAO 369/1996 & other connected mattersPage 45 of 46dasti to counsel for the parties as well as learned amici curiae under the signatures of the Court Master.J.R. MIDHA(JUDGE)JANUARY 14, 2015dk/rskFAO 369/1996 & other connected mattersPage 46 of 46

1 ANNEXURE A(FORMAT OF AFFIDAVIT OF ASSETS, INCOME AND EXPENDITURE TO BEFILED BY THE PARTIES IN ALL MAINTENANCE CASES)

AFFIDAVITI _______________________, son of / wife of ___________________, aged about ____ years, resident of ___________________________, do hereby solemnly affirm and declareas under:PART - IPERSONAL INFORMATION RELATING TO THE DEPONENT

Sl NameNo.1.2. Age3. Date of marriage4. Date of separation5. Educational qualifications6. Professional qualifications7. Occupation8. Monthly income (Give details in Part IV)9. Monthly expenditure ( Give details in Part V )10. Whether you are assessed to Income Tax?11. Whether you are assessed to Wealth Tax?12. Whether you have sufficient income to support yourself? If not, whether you have claimed maintenance from your spouse? If so, how much?Whether you are staying in matrimonial home?13.14.15.16.DescriptionIf not staying in the matrimonial home, relationshipand income of the person with whom staying.Members of the family:


31/42

(a) Dependent(b) IndependentParticulars217. Whether your spouse has claimed maintenance from you? If so, how much?18. Whether you have voluntarily paid or willing to pay maintenance to your spouse? If so, how much?

19. Whether you are willing to pay litigation expenses to your spouse? If so, how much?20. Particulars of pending litigation between the parties21. Whether any maintenance order has been passed by any Court? If so, give particulars and attach copies of the order?22. Whether the maintenance is being paid in terms of the aforesaid order? If so, file the statement of maintenance paid upto date23. E-mail address

24. Name of your counsel and his/her e-mail address25. Expenses incurred on this litigation26. Particulars of the bank account with name and address of the bank for the purpose of payment from or receipt of maintenance, as the case may bePART - IIRELEVANT INFORMATION RELATING TO THE SPOUSE1.2.3.

4.5.Educational and professional qualifications of your spouseWhether your spouse is earning? If so, giveparticulars of the occupation and income of your spouse.Whether your spouse is staying in the MatrimonialHome. If not, whether she is staying in his/her ownaccommodation or in a rented accommodation? If staying in a rented accommodation, what is the rentbeing paid by him/her?Particulars of the assets and liabilities of your spouseDo you have any documents relating to the income,assets and expenditure of your spouse? If so, givethe particulars and attach copies thereof?3PART - IIIRELEVANT INFORMATION RELATING TO THE CHILDREN1. Children from the marriage with their name and age2. Who has the custody of the Children?3. Expenditure on the education of the Children(Give details in Clause 7)4.Who is bearing the expenditure of Childrens


32/42

education5.6.7.How much expenditure has been incurred on thechildrens maintenance and childrens educationfrom the date of separation till now?If the children are in custody of your spouse,

whether you have voluntarily paid or willing to paythe expenses for the childrens maintenance andeducation? If so, how much?Details of expenditure on education(i) School fees(ii) Crech/Day Care/After school care(iii) Books/Stationery(iv) Private Tuitions(v) Sports(vi) Outings/summer camps/vacations

(vii) Entertainment(viii) Others

Amount(in Rs.)4PART-IVSTATEMENT OF INCOMES.No1.Description

In case of salaried persons:(i)Designation(ii) Name and address of the employer (iii) Date of employment(iv) Gross Income including the salary, D.A.,commissions/incentives, bonus, perks etc.(v) Perquisites and other benefits provided by theemployer includingaccommodation,cars/other automotive, sweeper, gardener,watchman or personal attendant, gas,electricity, water, interest free or concessionalloans, holiday expenses, free or concessionaltravel, free meals, free education, gifts,vouchers, etc. credit card expenses, clubexpenses, use of movable assets byemployees, transfer of assets to employees,value of any other benefit/amenity/service/privilege and the value of such perquisites andbenefits(vi) Deductions from the gross income(vii) Income tax paid(viii) Net income(ix) Value of stock option benefits if provided by


33/42

the employer (x) Pension and retirement benefits payable at thetime of retirement2.In case of self-employed persons:(i)Nature of business/profession(ii) Whether the business/profession is carried on

as an individual, sole proprietorship concern,partnership concern, company or associationof persons, HUF, joint family business or anyother form. Give particulars of your share inthe business/ profession. In case of partnership, specify the share in theprofit/losses of the partnershipParticulars5(iii) Number of employees

(iv) Annual turnover/gross receipts(v) Gross Profit(vi) Income Tax(vii) Net Income(viii) Details and value of benefits in kind, perks or other remuneration received from the businesse.g. provision of car, payment of accommodation etc(ix) Amount of regular monthly withdrawal or drawings from the business

(x) Current value of your business interest(s)(xi) Current value of your business assets(xii) List of directorships held, sitting fees,commission or any other remuneration3.(xiii)Net worth of the company in which you areDirector along with the number of shares heldin the CompanyIncome from Other Sources:(i)

Agricultural Income(ii) Rent(iii) Interest on bank deposits and FDRs(iv) Interest on investments including deposits,NSC, IVP, KVP, Post Office schemes, PPF,loans etc.(v) Dividends(vi) Income from machinery, plant or furniture leton hire.(vii) Gifts(viii) Profit on sale of movable/ immovable assets4.

Any other income not covered aboveTOTAL INCOME(Give monthly income)6


34/42

PART VSTATEMENT OF EXPENDITURES.No.1.Description(in Rs.)Housing

Monthly rentMortgage payment(s)Repairs & MaintenanceProperty tax2.HouseholdexpenditureGroceries/Food/Personalcare/clothingWater

ElectricityGasTelephoneTVCable/Set-topBoxcharges & Internet servicesMaintenance, replacementand repair of householditems,

appliancesandkitchenware items.TelephoneDomestic full time/part timeservant(s)Others (specify)3.

AmountTransport(i)Car/Scooter (a) Driver(s)(b) Fuel(c) Repair/Maintenance(d) Insurance(e) Loan repayment7(ii) Public Transport(a) (b) Metro(d)Medical expenditureTaxi(c)4.Bus


35/42

AutoDoctor MedicationHospitalOther medical expenditureOthers (specify)5.Insurance

Life AnnuityHouseholders6.Entertainmentand recreationClubHealth ClubGym7. Holiday and vacations

8. Gifts9. Pocket money/allowance10. Legal/litigation expenses11. Discharge of LiabilitiesCredit card(s) paymentHire purchase/lease(i)Repayment of Loans(a) House loan

(b) Car loan(c) Personal loan(d) Business loan8(e)

Any other loan(ii) Name of the lenders(iii) Mode of repayment(iv) Instalment amount(v) Other personal liabilitiesNewspapers, magazines,booksReligious contributions/CharitiesOthers (specify)12. Miscellaneous13. Other expenditure(not specified above)TOTAL EXPENDITURE(Give monthly expenditure)PART - VISTATEMENT OF ASSETS

AssetsS.No.Particulars Estimated Market


36/42

Value Account No. & Current BalanceName of Bank1. Real EstateIncluding land, built up properties, leasehold properties, agricultural land andinvestment in real estate such as booking of plots, flats and other immovable properties

in your name or joint names.List any interest in properties, includinglease hold interest and mortgages, whether or not you are registered as owner.Provide legal descriptions and indicateestimated market value of your interestwithout deducting encumbrances or costsof disposition.) (Record encumbrancesunder debts.)2. Financial Assets:

(i) Details of all bank accounts includingCurrent and Savings Accounts in your name, or joint name and balance in the9said account(ii) Cash in handParticulars3. InvestmentsCurrent ValueDetails of all investments you hold or, in

which you have interest and their currentvalue:(i)FDRs, NSC, IVP, KVP, Post Officeschemes, PPF etc.(ii) Deposits with Government and Non-Government entities(iii) Stocks, shares, debentures, bonds,units and mutual funds, etc.(iv) Life and endowment policies andsurrender value(v) Loan given to friends, relatives andothers(vi) Other investments not covered byabove items4. Pensions and Registered Retirement ParticularsSavings PlanMaturity amountIndicate name of institution where accountsare held, name and address of pension planand pension details.Particulars Current valueParticulars5. Corporate/Business InterestsCurrent valueList any interest you hold, directly or


37/42

indirectly,inanycorporation,unincorporated business, partnership, trust,oint venture and Association of Persons,Society etc.6. Movable Assets

(i) Motor Vehicles (List cars, motorcycles, scooters etc. along with their brand and registration number)(ii) Livestock(iii) Mobile phone(s)(iv) Computer/Laptop(v) Other electronic including I-pad etc.(vi) TV, Fridge, Air Conditioner, etc.

gadgets10(vii) Other household appliances(viii) Quantity of gold, diamond jewellery(ix) Quantity of Silver Utensilssilver and7. Intangible properties including patents,trademark, copyright design and goodwill

and their valueParticulars8. About disposal of propertiesSale considerationreceivedParticulars of properties (movable as wellas immovable) sold/agreed to be soldbetween the date of marriage or one year from separation whichever is later upto thedate of filing this affidavit and the saleconsideration received from the purchaser Particulars9. OthersEstimated currentvalueList anything else of value that you own,including precious metals, collections,works of art, jewellery or household itemsof high value. Include location of anysafety deposit lockersPART - VIIJOINT PROPERTIES OF THE PARTIESS.No.Description1. Properties presented at or about the time of


38/42

marriage, which belong jointly to both the husband and wife. Give the status of their possession2. Other joint properties of the parties. Give the status of their possessionParticulars11PART - VIII

STATEMENT OF LIABILITIESS.No.1.DescriptionParticulars of DebtsCurrent ValueSecured debt(s)List all mortgages, loans, and any other

debts secured against an assetUnsecured Debt(s)2.List all bank loans, personal loans, credits,overdrafts, credit cards and any other debtsOther 3.List any other debts, including obligationsthat are relevant to a claimPART - IX

GENERAL INFORMATION RELATING TO THE STATUS,STANDARD OF LIVING AND LIFESTYLES.No.Description1. Residential address2. Area of residential accommodation (in sq. feet)3. Who is the owner of the residential accommodation? In case of rentedaccommodation, specify the monthly rent4. Name of school(s) where the child or children are studying5. Number of part-time/full time domestic servants and their wages6. Average monthly withdrawal from bank(s)7. Mode of travel in city/outside cityParticulars128. Membership of clubs/health clubs/gyms, societies and other associations. Specify the membership fee and subscription9. Particulars of credit/debit cards, its limit and usage10. Particulars of frequent flier cards


39/42

11. Frequency of foreign travel, business aswell as personal12. Category of hotels ordinarily used for stay, official as well as personal13. Category of hospitals opted for medicaltreatment including type of rooms14. Brand of vehicle, mobile and wrist watch15. Expenditure ordinarily incurred on family

functions including birthday of thechildren16. Expenditurefestivalsordinarilyincurredon17. Expenditure incurred on marriage of family members18. Status of the party/family:

- High- Upper Middle- Middle- Lower Middle- Low- Below povertyline13PART - XDOCUMENTS RELATING TO ASSETS, INCOME AND EXPENDITURE OF

THE DEPONENTPART ADOCUMENTS RELATING TO PERSONAL INFORMATIONS. No.Description1. Aadhar Card2. PAN Card3. PassportPART BDOCUMENTS RELATING TO INCOME, ASSETS AND LIABILITIESS. No.DescriptionPlease Tick

Attached4. Statement of Account of all bank accounts including current and savings accounts for last 3 years5. Income Tax Return(s) along with Statement of Income and Annexures for last 3 years6. Wealth Tax return(s) with statement of assets/liabilities for the last 3 years7. In case of Salaried Persons(i) Appointment Letter (ii) Salary slip(iii) Forms 16, 16A & 12BA


40/42

(iv) Cost to Company Certificate and CIBIL Certificate, wherever applicableNot

ApplicableTo follow14(v)

8.Copies of TDS certificatesIn case of self-employed persons(i) Balance Sheet and Profit & Loss Account(ii) Balance Sheet and Profit & Loss Account of the

proprietorship firm, if thebusiness is carried on in thename of a sole proprietorshipconcern(iii) Balance Sheet and Profit & Loss Account of the partnership firm, if the

deponent is a partner in a firmalong with the Scheduleshowing the distribution of partners remuneration and share of profits/losses of thepartnership firm and the copyof the partnership deed(iv) Balance Sheet and Profit & Loss Account of the Company in which the deponent is a Director (v) Balance Sheet and Profit & Loss Account of the

Association of Persons, HUF,Joint Family business or trustin which the deponent hasshare(vi) Copies of TDS certificates9.In case of Income from other sources:(i) Lease Deed(s)/Rent


41/42

Agreement(s) /Licence

Agreement(s) in respect of therental income(ii) Interest Certificate in respect of the interest income on deposits and investments(iii) Dividend

Certificatesin15respect of dividend income(iv) SaleDeed(s)/transfer documents in respect of theprofitonsale

of property/properties10. Other relevant documents relating toIncome/Assets11. Other relevant documents relating toliabilitiesPART CDOCUMENTS RELATING TO EXPENDITURE12.(i) Documents relating to the

expenditure on education of children including tuition fees(ii) Rent and maintenance receipts(iii) Electricity, water, security andgas bills(iv) Documents relating to thesalary paid to the employeesincluding servant(s)(v)Documentsrelatingtoexpenditure on conveyance(vi) Debit andstatements(vii) FrequentstatementsCreditFliersCardCard(viii) Mobile and landline phonebills(ix) Internet and TV cable/ Set -Top Box bills(x)


42/42

Documents relating to the re-payment of the loans(xi) PPF,EPFandother superannuation fund receipts(xii) Receipts of premium of

insurance policies(xiii) Receipts of payments inrespect of mutual funds(xiv) Documents torelating16payment of interest on bankand other loans(xv) Documents relating to thepayment of taxes, including

Income Tax, Wealth Tax andProperty Tax(xvi) Other relevant documentsrelating to ExpenditureDeclaration:1. I declare that I have made full and accurate voluntary disclosure of my income,expenditure, assets and liabilities from all sources. I further declare that I have noassets, income, expenditure and liabilities other than set out in this affidavit.2. I undertake to inform this Court immediately upon any material change in my

employment, assets, income, expenses or any other information included in thisaffidavit.3. I understand that any false statement in this affidavit may constitute an offenceunder Section 199 read with Sections 191 and 193 of the Indian Penal Codepunishable with imprisonment upto seven years and fine, and Section 209 of IndianPenal Code punishable with imprisonment upto two years and fine. I have readand understood Sections 191, 193 199 and 209 of the Indian Penal Code.DEPONENTVerification:Verified at ____________on this ____ day of ___________ that the contents of theabove affidavit relating to my assets, income and expenditure are true to myknowledge, no part of it is false and nothing material has been concealedtherefrom, whereas the contents of the above affidavit relating to the assets,income and expenditure of my spouse are based on information believed to be true.I further verify that the copies of the documents filed along with the affidavit arethe copies of the originals.DEPONENT

Print Page
http://window.print%28%29/